Sunday, June 12, 2011

A Condition Precedent

United States v. Spencer, No. 10-1869-cr (2d Cir. May 20, 2011) (Parker, Pooler, Lohier, CJJ)

Joseph Spencer left much to be desired as a supervised-releasee.

He was originally sentenced to time served and three years’ supervised release for bank fraud, then, after a hearing, the district court found that he, in essence, committed the same crime while on supervision. Spencer was also subject to Standard Condition 6, which required him to “notify the probation officer at least ten days prior to any change in residence or employment,” and the district court also found that Spencer violated Condition 6. The court sentenced him to a total of fourteen months’ imprisonment for everything. While Spencer did not challenge the finding of new criminal conduct on appeal, the circuit agreed that his other violation conduct was not “clearly and specifically forbidden by Condition 6"; it vacated and remanded for resentencing.

The evidence at the hearing established that Spencer had been fired from his job in April of 2007, but for several months continued to tell his probation officer that he was still employed there. In addition, the hearing established that for a brief period in early 2008, after a fight with his girlfriend, Spencer lived at a different address, but did not tell his probation officer about the change.

The district court rejected Spencer’s arguments that the government failed to establish that he had ten days’ notice of either the loss of his job or the need to relocate temporarily, and thus that he did not violate Condition 6. The court held that the “purpose” of Condition 6 is to keep the probation officer informed about a changed circumstance “whether it has changed after ten days’ notice or not.”

The circuit, however, held that the “purpose” of the condition could not trump its plain terms. Conditions of supervision must be “sufficiently clear and specific to serve as a guide for the defendant’s conduct.” And a “person of ordinary intelligence” on supervision would not be expected to “ignore the explicit ‘at least ten days prior’ limitation of Condition 6.” Since Condition 6 does not include “periods of notice less than ten days,” and since there was “no evidence that Spencer had at least ten days prior notice” before being fired, the district court erred in finding that he violated Condition 6 by not telling his probation officer about the firing.

Simiarly, the facts before the district court could not support a finding that Spencer violated Condition 6 by failing to report a temporary change in residence precipitated by difficulties with his girlfriend. The lower court did not determine whether Spencer even had the ability to notify his probation officer ten days in advance of the change. Absent such a finding, it was error to conclude that Spencer violated Condition 6.

Spencer had also argued that the term “residence” in Condition 6 referred to the releasee’s permanent residence, and not a temporary stay outside his home. While both the district court and the circuit found this to be a “plausible” reading of the condition, the circuit did not conclusively rule on it.

Since the district court did not say that it had based the violation sentence on only on the new criminal conduct, the circuit concluded that the errors with respect to Condition 6 were not harmless, and that Spencer should be resentenced.

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